Calcutta High Court (Appellete Side)
(Swapan Kumar Mukherjee vs The State Of West Bengal on 26 October, 2017
1
407/CL
26.10.2017
rrc
F.M.A. 775 of 2017
with
C.A.N. 12095 of 2016
(Swapan Kumar Mukherjee Vs. The State of West Bengal
& Ors.)
Mr. Rabin Kumar Gharai
Ms. Soma Chakraborty
......For the applicant
The appellant is aggrieved by the judgment and order
dated 30th August, 2016 passed by a learned Judge of this
Court whereby his writ petition [W.P. 13528 (W) of 2016]
was dismissed at the admission stage.
Mr. Gharai, learned advocate appearing for the appellant
submits that the appellant claimed in the writ petition of
having served as a teacher in Rani Rashmoni Junior High
School since 22nd December, 1974; that, an inspection of the
school was conducted by the District Level Inspection Team
(hereafter the 'DLIT') and in the report prepared by it on 14th
January, 1993, the appellant's name figured as a teacher of
the school; that, however, other teachers whose names
figured in the report were granted approval of appointment,
but the appellant was left out; that, feeling aggrieved
thereby, the appellant had approached the writ Court and
his writ petition was disposed of on 13th April, 1994 by a
learned Judge of this Court granting liberty to the appellant
2
to submit a representation before the respondent no. 2
therein within two weeks whereupon the respondent no. 2 was required to hear the appellant and pass an appropriate order dealing with his contentions; that, no action was taken by the said respondent no. 2; that, a further representation to the District Inspector of Schools (SE), North 24-Parganas praying for absorption in service dated 16th May, 2016 followed but it did not also yield any result. It is because of such inaction that the appellant was compelled to approach the writ court again.
The learned Judge was of the view that the appellant had not been appointed in accordance with law and that the writ petition had been presented by him only four months prior to attainment of 60 years of age. On such finding, interference was declined.
There is no document on record to show that the appellant submitted any representation in terms of the liberty granted by the order dated 13th April, 1995. More than 20 years later, the appellant woke up from his slumber and submitted a representation and soon thereafter presented the writ petition out of which this appeal arises. Mr. Gharai has sought to contend that since the appellant's name figured in the DLIT report, he is entitled to 3 be appointed. In support of such contention, he has placed reliance on a decision of the Supreme Court reported in 2016(1) CLJ (SC) 63 (Dhananjoy Karmakar Vs. State of West Bengal & Ors.).
Having heard Mr. Gharai and on perusal of the materials on records, we are of the considered view that the judgment and order under challenge does not deserve interdiction for the reasons that follow.
The first hurdle that the appellant was required to overcome was the long delay in presentation of the writ petition. If indeed he had moved an earlier writ petition whereupon a learned Judge granted him liberty to submit a representation, it defies logic as to why the appellant did not avail of such liberty. In the absence of any representation, the respondent no. 2 in that writ petition was under no obligation to consider the grievance of the appellant. At this stage, Mr. Gharai has submitted that the representation of the appellant may not have been annexed to the writ petition and an opportunity to place the same ought to be extended. This submission does not aid the appellant. Even if any representation had been submitted, there is no explanation as to why the appellant waited for more than 20 years to enforce his right before the writ Court 4 once again. It is only on the ground of delay that the writ petition deserves dismissal.
However, we do not wish to rest our decision on a technical point. We shall now proceed to decide the appeal on merits.
The DLIT report that has been placed before us is a document running into four pages. We can take judicial notice of the fact that DLIT reports are prepared in a prescribed proforma running into nearly 10 pages and on the last page of the DLIT report, members of the DLIT are required to put their signatures. The so-called report placed by Mr. Gharai does not have the signature of any of the members of the DLIT and, therefore, the document produced before us is incomplete. On the basis of such incomplete document, no relief can be granted to the appellant. The decision in Dhananjoy Karmakar (supra) has been perused. The Supreme Court proceeded to grant relief to the petitioner before it on the ground that his name appeared in the DLIT report. We can reasonably infer that a complete DLIT report had been placed before the Supreme Court and based thereon the order granting relief followed. Citing an order passed by the Supreme Court involving facts and 5 circumstances which are entirely different is inapt and we are not persuaded to blindly follow such decision. While concluding, we hold that the appellant's service not having been approved immediately after the school was recognized in September, 1992, such approval cannot be directed to be given on the basis of an incomplete DLIT report (which we are inclined to hold as 'no report' in the eye of law) and that too, on a writ petition which is presented only four months prior to attainment of 60 years of age by the appellant.
The appeal stands dismissed. There shall, however, be no order as to costs.
In view of the aforesaid order, nothing survives for decision on C.A.N. 12095 of 2016 and the same stands dismissed too.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible. ( Rajarshi Bharadwaj, J.) ( Dipankar Datta, J. )